CHAPTER IV.

CHILD STEALING.

§ 278. Definition and punishment of child stealing.

278. Every person who maliciously, forcibly, or fraudulently takes or entices away any child under the age of twelve years, with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the State prison not exceeding ten years, or by imprisonment in a county jail not exceeding one year, and a fine not exceeding five hundred dollars.

CHAPTER V.

BIGAMY, INCEST, AND THE CRIME AGAINST NATURE.

§ 281. Bigamy defined.

§ 282. Exceptions.

§ 283. Punishment of bigamy.

§ 284. Marrying a husband or wife of another.

§ 287. Penetration sufficient to complete the crime.

281. Every person having a husband or wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy.

Bigamy.-Bigamy is an offense against society-98 U. S. 145. Parties marrying under the legal age of consent, and cohabiting together after attaining legal age, cannot marry again while the first marriage exists-20 Ohio, 1. Such marriage is only voidable-55 Ala. 108; id. 162; and if the minor refuses to consent on arriving at legal age, and ceases to cohabit afterward, such minor may marry again-15 Mich. 193. A marriage contracted through fear may, under some circumstances, be void-44 Ala. 24. A marriage in fact in a foreign jurisdiction is prima facie evidence of a valid marriage-54 N. H. 456; S. C. 1 Am. Cr. R. 34. But if invalid where contracted, it is invalid here--31 Up. Can. Q. B. 182. Yet, a marriage which the law of the place may hold invalid, may, nevertheless, be deemed valid here-25 Wis. 370; 21 Gratt. 800. So it may be held valid though not solemnized by an ordained minister-25 N. Y. 390. It is a civil contract, and does not require the intervention of a clergyman or a magistrate to make it legal-2 Cal. 503; see Civ. Code, § 55; and no particular form is required-2 Cal. 503. An agreement before witnesses, and subsequent cohabitation, is sufficient-25 N. Y. 390.

Second marriages.-The gist of the offense is the entering into a void marriage while a valid one exists-25 N. Y. 390; 34 Mich. 339; S. C. 1 Am. Cr. R. 72; 1 Car. & K. 144; it is an indispensable element-55 Ala. 108; 59 id. 101; and must have been contracted in the State where the indictment is found-2 Parker Cr. R. 195; 1 Pick. 138; 8 id. 433; 113 Mass. 458; 44 Ala. 24; 59 id. 101; but by statute, a continuance in a bigamous state is made indictable wherever a second marriage may have been solemnized-18 Vt. 570; 2 Cush. 553; 3 Head, 544; 12 Minn. 476; 4 Thomp. & C. 77; 2 Parker Cr. R. 192; 5 Hun, 297; but see 32 Ark. 205; id. 565; 55 Ala. 108. The offense is complete when the second marriage is complete, without proof of cohabitation-55 Ala. 108; 81 Pa. St. 428; 2 Ired. 346; although such marriage is invalid by reason of some legal disability of the parties-34 Mich. 339; S. C. 1 Am. Cr. R. 72; 1 Car. & K. 144; but see 10 Cox C. C. 411; id. 474; as a marriage between a negro and a white person-34 Mich. 339; S. C. 1 Am. Cr. R. 72. When one goes through the form of marriage, those aiding and assisting are accessories at the fact-1 Car. & K. 144; see 34 Ga. 275. Ignorance of law

or the advice of a magistrate will not excuse from responsibility-36 N. J. L. 125; 11 Blatchf. 200; id. 374; 27 Mich. 191; 2 Met. 190; 9 Allen, 489; 97 Mass. 117; 98 id. 6. Ignorance of law is no defense when the statute makes the act indictable irrespective of guilty knowledge-68 Me. 30; S. C. 1 Am. Cr. R. 42; and a party cannot avail himself of good faith on the act-id. 98 U. S. 145; 1 Utah, 226; 13 Bush, 318; S. C. 2 Am. Cr. R. 163.

282.

The last section does not extend

1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years, without being known to such person within that time to be living; nor,

2. To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court.

Subd. 1. Absence.-If the party knows the absentee beyond seas to be alive, the exception in the statute will not relieve-38 Miss. 313; and see 6 Allen, 591; 10 id. 196; 7 Cox C. C. 175. Being in another State of the Union is equivalent to being beyond seas-3 Wheat. 541; 14 Peters, 141; 10 Pick. 515; 1 Rawle, 373. See 34 Ga. 407; 50 Md. 161. In North Carolina, an absence of seven years, without knowledge of his being alive, is a defense-2 Ired. 346. In Massachusetts, the legality of the second marriage while the spouse is living does not depend on the ignorance of his being alive or on the honest belief of his death-7 Met. 472. In Pennsylvania, any false rumor circumstantial as to place, time, and mode of death, in appearance well founded, of the death of the other, absent for two years, is a defense-Whart. on Hom. 412.

Subd. 2. Divorce.-If a divorce be such as by the lex fori entitles one to marry again, he cannot be convicted of bigamy-43 Me. 258; 5 Barb. 117; 2 Clark & F. 567. To give validity to a divorce, the complainant at least must be domiciled in the State where it is granted-25 Mich. 247; see 126 Mass. 34; S. C. 2 Am. Cr. R. 612; 10 Mass. 260; 13 Gray, 209; 4 Allen, 134; 1 Johns. 424; 15 id. 121: 45 N. Y. 535; 32 Ga. 653. So, if a party go to a State merely to obtain a divorce, it is void-28 Ala. 12. In Massachusetts, the guilty party cannot marry again-126 Mass. 34; S. C. 2 Am. Cr. R. 612; 1 Pick. 136. He cannot marry a second wife a resident of the State-1 Pick. 136; 8 id. 433; 113 Mass. 458. But he may marry out of the State, unless he goes there to marry and evade the laws-113 Mass. 458; 8 Pick. 433; see 13 Ala. 570; 17 Pa. St. 240; 1 Yerg. 110; 1 Bish. Mar. and Div. § 306; 2 id. 701. If a decree be obtained before the second marriage, it is a good defense; otherwise, if obtained after the marriage-2 Hill, 325. An honest but erroneous belief that a divorce has been granted is no defense-13 Bush, 318; S. C. 2 Am. Cr. R. 163; 65 Me. 20. In Indiana, it is a good defense-46 Ind. 459; but see 56 id. 263. If the defense is divorce, the defendant must prove it-7 Allen 306.

283. Bigamy is punishable by fine not exceeding two thousand dollars, and by imprisonment in the State prison not exceeding three years.

284. Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the pro

visions of this chapter, is punishable by fine not less than two thousand dollars, or by imprisonment in the State prison not exceeding three years.

285. Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the State prison not exceeding ten years.

Incest.-Incest is a statutory offense-14 Cal. 159; 1 Morris, 330; 2 Met. 193; 11 Ohio St. 328; 11 Ga. 53. It is a joint offense-49 Ind. 544; S. C. 1 Am. Cr. R. 354. And the lex fori arbitrates as to the relationship -Whart. Conf. of L. § 136. In Iowa, intermarriage within the prohibited degrees is incest, without carnal knowledge-34 Iowa, 547. In Ohio, emissis seminis was once essential-22 Ohio St. 541; S. C. 1 Green C. R. 662; but elsewhere it was held not necessary-34 Iowa, 547. A bare solicitation is not indictable-82 Ill. 191; S. C. 2 Am. Cr. R. 329; 54 Pa. St. 209; 39 Mass. 476. In California, the attempt must be manifested by acts which would end in consummation, but for the intervention of circumstances, independent of the will of the party-14 Cal. 159. But sending for a magistrate is not an attempt to contract an incestuous marriage-14 Cal. 159.

Prohibited degrees.-Criminal intercourse with a daughter is incest -11 Ga. 53; and the offense may be committed with a natural as well as a legitimate daughter-11 Ala. 289; 30 id. 251. It is not incest for a man to cohabit with his step-daughter-47 Miss. 278; the relation of step-daughter and step-father ceases to exist on its termination by death or divorce-22 Ohio St. 541; S. C. 1 Green C. R. 662. Brother and sister mean the offspring of the same parents; they do not necessarily imply legitimacy of birth-34 Iowa, 547. See Desty's Crim. Law, § 58 a. See Civ. Code, § 59.

286. Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the State prison not less than five years.

Crime against nature.-Sodomy is the carnal knowledge committed against the order of nature by man with man, or by man with woman in an unnatural mannner, or by man or woman with a beast-5 Parker Cr. R. 200. Consent or non-consent is immaterial-8 Car. & P. 604; 3 Cox C. C. 270; the party consenting being au accomplice-111 Mass. 411. See Rosc. Cr. Ev. 944; unless committed on a child under fourteen-1 Denison, 864; Law R. 2 C. C. 12. It is sexual connection per anumRuss. & R. C. C. 331; see 1 Va. Cas. 307, with mankind or beast, but not with fowl-2 Whart. C. L. 8th ed. § 579. Attempts and assaults to commit the offense are indictable-3 Q. B. 180; 1 Moody C. C. 34; Law R. 2 C. C. 12; 8 Car. & P. 417.

287. Any sexual penetration, however slight, is sufficient to complete the crime against nature.

Penetration is essential to the offense-Russ. & R. C. C. 331; see 8 Car. & P. 604; and without emission it is sufficient-1 Va. Cas. 307; 3 Har. & J. 154.

CHAPTER VI.

VIOLATING SEPULTURE AND THE REMAINS OF THE DEAD.

$290. Unlawful mutilation or removal of dead bodies.

§ 291. Unlawful removal of dead body from grave for dissection, etc. $292. Who are charged with the duty of burial.

§ 293. Punishment for omitting to bury.

§ 294.

§ 295.

Who are entitled to custody of a body. Arresting or attaching a dead body. § 296. Defacing tombs and monuments. § 297. Unlawful interments.

290. Every person who mutilates, disinters, or removes from the place of sepulture the dead body of a human being without authority of law, is guilty of felony. But the provisions of this section do not apply to any person who removes the dead body of a relative or friend for reinterment.

Violation of sepulture.-It is a crime at common law to wantonly or illegally disturb a corpse-8 Pick. 370; 19 id. 304; 10 id. 37; 1 Leach, 497; Russ. & R. C. C. 367; 7 Cox C. C. 214; or to remove one-7 Cox C. C. 214. It is not necessary that all engaged should be actually present, provided they are near enough to render assistance-6 Blackf. 110. The wife loses all control over the body of her husband after its burial-42 Pa. St. 293.

291. Every person who removes any part of the dead body of a human being from any grave or other place where the same has been buried, or from any place where the same is deposited while awaiting burial, with intent to sell the same, or to dissect it, without authority of law, or from malice or wantonness, is punishable by imprisonment in the State prison not exceeding five years.

Body-snatching.-It is a crime to dig up and remove a dead body for gain or for dissection-4 Blackf. 328; 19 Pick. 304; 10 id. 37; Dowl. & R. 13; 1 Leach, 497; 8 Cox C. C. 18; or to sell a dead body for dissection-8 Cox C. C. 18.

292. The duty of burying the body of a deceased person devolves upon the persons hereinafter specified: